Bill C-4 (Historical)

Preventing Human Smugglers from Abusing Canada's Immigration System Act

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act

This enactment amends the Immigration and Refugee Protection Act to, among other things,
(a) authorize the Minister, in certain circumstances, to designate as an irregular arrival the arrival in Canada of a group of persons, the result of which is that some of the foreign nationals in the group become designated foreign nationals;
(b) authorize an officer or the Minister, as the case may be, to refuse to consider an application for permanent residence if the applicant has failed to comply with a condition of release or other requirement imposed on them;
(c) provide that a person may not become a permanent resident as long as an application by the Minister for cessation of that person’s refugee protection is pending;
(d) add, as grounds for the detention of a permanent resident or foreign national, the existence of reasonable grounds to suspect that the person concerned is inadmissible on grounds of serious criminality, criminality or organized criminality;
(e) provide that the Immigration Division must impose any prescribed conditions on the release of certain designated foreign nationals;
(f) provide for detention rules and a review procedure that are specific to the detention of certain designated foreign nationals;
(g) clarify the authority of the Governor in Council to make regulations in respect of conditions of release from detention;
(h) provide that certain designated foreign nationals may not apply to become permanent residents until the expiry of a certain period and that the processing of any pending applications for permanent residence is suspended for a certain period;
(i) require certain designated foreign nationals on whom refugee protection has been conferred to report to an officer;
(j) authorize the Governor in Council to make regulations respecting the reporting requirements imposed on certain designated foreign nationals;
(k) provide that the offence of human smuggling is committed when a person organizes the coming into Canada of another person and knows, or is reckless as to whether, the entry into Canada is or would be in contravention of the Act;
(l) provide for minimum punishments for the offence of human smuggling in certain circumstances;
(m) in respect of the determination of the penalty to be imposed for certain offences, add as an aggravating factor the endangerment of the life or safety of any person as a result of the commission of the offence;
(n) change the definition of “criminal organization” in Part 3 to give it the same meaning as in subsection 467.1(1) of the Criminal Code; and
(o) extend the time for instituting proceedings by way of summary conviction from six months to five years or from six months to 10 years, as the case may be.
The enactment also amends the Balanced Refugee Reform Act to provide that a refugee protection claimant whose claim is rejected is not prevented from applying for protection earlier than 12 months after the day on which the claim is rejected, if it is rejected as a result of a vacation of the initial decision to allow the claim.
The enactment also amends the Marine Transportation Security Act to increase the penalties for persons who fail to provide information required to be reported before a vessel enters Canadian waters or to comply with ministerial directions and for persons who provide false or misleading information. It creates a new offence for vessels that fail to comply with ministerial directions. It also amends the Act to authorize regulations respecting the disclosure of certain information for the purpose of protecting the safety or security of Canada or Canadians.

Preventing Human Smugglers from Abusing Canada's Immigration System Act

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I listened with interest to my colleague speak about Bill C-4. It is unfortunate that at different times throughout her speech she mixed various aspects of history in an attempt to equate this with the turning back of the St. Louis. We are not talking about turning ships back. We are talking about implementing a fair and transparent system that will allow our public safety officials to ensure that these people are fleeing persecution, not prosecution.

Another difficulty I have is the innuendo that somehow the Conservatives are not compassionate. I assure the member that many of us on this side of the House have been personally involved in helping "the boat people", as she has referred to them. Many of us have had refugees stay in our homes. We have walked with them through those early days, weeks and months as they have adjusted to life here in Canada. There is no intention on our part to minimize the needs of legitimate refugees. Our intent is to ensure there is a fair and transparent system.

Does the hon. member not think it is important that our public safety officials have the tools at their disposal to ensure that these people are legitimate refugees and are not taking the place of legitimate refugees and would otherwise be kept out?

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I agree. I want to see a fair and transparent system for dealing with refugees. However, we have neither in the bill before us. It is not fair nor transparent.

First, we are talking about detention without any kind of mechanism for appeal. I spoke to that at length in my speech. How is that fair or transparent?

Second, the bill actually allows the minister to designate people retroactive to 2009. How is that fair and transparent?

I was delighted to hear the member for Kitchener—Conestoga say it is imperative that we allow public servants to do their job. Therefore, I hope the member would agree that what is required for a fair and transparent refugee system to effectively deal with refugee claimants is adequate human resources. Otherwise, we will find more situations, as has often been the case for some in my riding of Hamilton Mountain, where the government has been unable to investigate some people's claims until they have been in the country for eight or nine years and this is the only home their children have ever known.

I agree that we need more resources. We must treat refugees with fairness using a system that is transparent and accountable.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I was struck by the point the hon. member made that Canadians are compassionate and have a history of reaching out and wanting to help those who are less fortunate around the world. She also commented on the fact that she finds it strange that we would single out a class of people arriving as refugees by a certain mode of transportation, people who represent only a small fraction of the total number of refugees.

I ask the hon. member to comment on whether she thinks that is fair.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I obviously do not think that is fair. To suggest that a person's mode of transportation to Canada determines whether he or she is a legitimate refugee claimant is mind-boggling. This bill does not go quite as far as suggesting that, but it comes close. It primarily targets those people who would be arriving by boat. That clearly sets out two classes of refugees. That is not a fair nor a transparent system.

As I stated at the outset, the bill purports to help put an end to human smuggling. However, it is very light on dealing with human smugglers, human traffickers or people involved in organized crime. Rather, it puts the onus almost entirely on those who are seeking refugee status.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Mr. Speaker, I welcome the opportunity to speak to Bill C-4, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act.

I have listened with great interest to the debate on Bill C-4. The Conservatives claim that the bill will crack down on human smugglers. Unfortunately, Bill C-4 will not do anything to deter human smugglers. Rather, it will unfairly target legitimate refugees desperately seeking asylum.

The true Conservative agenda to crassly capitalize on the worst stereotypes related to immigrants and refugees through this bill has been constantly displayed in this debate.

The bill before the House fails to achieve its intended goal of stopping human smuggling. However, it will succeed in violating international law and the Charter of Rights and Freedoms.

Audrey Macklin, professor at the Faculty of Law and Centre for Ethics at the University of Toronto, and Sean Rehaag, professor at York University, Osgoode Hall Law School and Centre for Refugee Studies have said that provisions such as those contained within the bill:

...flagrantly violates the Canadian Charter of Rights and Canada's international legal obligations.

[...]

It is inconceivable that the government was not advised that key elements...were unlawful. It is more likely that the government did not care.

The Conservative government claims that Bill C-4 will entrust the Minister of Public Safety with the power to designate the arrival of a group of individuals as a “human smuggling event” if the manner in which they enter the country is deemed contrary to Canada's immigration laws.

However, nothing in this legislation actually addresses a human smuggling event. Rather, the legislation deals with a designation of an “irregular arrival”. Under this particular designation, all groups of two or more people could be designated under either of the two very broad criteria, which could in fact apply to the vast majority of refugee claimants.

Under the provisions of Bill C-4, individuals arbitrarily designated by the Minister of Public Safety would be prevented from appealing to the new refugee appeal division that was agreed to last spring. This process would provide all refugee claimants the opportunity to appeal for status.

Furthermore, legitimate refugees travelling aboard a vessel that is arbitrarily designated by the government as an irregular arrival will be prohibited for five years from applying for other forms of residence such as those on humanitarian and compassionate grounds.This measure unfairly and punitively punishes the victim.

Canada has an international obligation to protect legitimate refugees. However, because of the manner by which they arrive, the legislation unfairly targets legitimate refugees through its punitive and broad punishments in an effort to keep them from obtaining residency and protection.

How does the government expect those refugees who have suffered persecution and risked their lives to get to Canada? Not everyone can travel like the Minister of National Defence on Challenger jets and search and rescue helicopters.

Additionally, this legislation allows for individuals who are deemed legitimate refugees to be shipped back to their country of origin five years after their refugee status has been granted if the government decides they no longer need protection. Not only does this measure violate international law, it is cruel and seeks to disrupt any semblance of life they have made in Canada after fleeing persecution and could also put them back in danger.

The right to assimilation and naturalization are rights that are given to refugees under the United Nations Convention Relating to the Status of Refugees. Article 43 states:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

This bill not only ignores Canada's international obligations to protect legitimate refugees seeking asylum but also seeks to further victimize their already difficult experiences. Bill C-4 would not hold human smugglers responsible for their illegal and heinous abuse of refugees. This draconian and backward piece of legislation is dangerous and attempts to criminalize the refugee instead of the smuggler. Once again the blind partnership of the Conservatives is masked in the name of public safety.

I would hope that if a bully beat up a victim the government would have the sense to understand that further punishing the victim would not dissuade the bully from abusing other victims. Similarly, when the government declares that human smugglers must be stopped and then goes on to introduce legislation that only inhumanely punishes refugees, human smugglers will not be dissuaded from smuggling more refugees. Unlike the government, Liberals are interested in pragmatic and evidence-based solutions to human smuggling that target the real criminals.

In this debate I have repeatedly heard Conservative members refer to refugees seeking asylum as “queue jumpers”. Let me make it clear that refugees are not queue jumpers. They are not economic immigrants. There is already a system to distinguish economic immigrants from legitimate refugees.

Last, they are not criminals. As the United Nations High Commissioner for Refugees states, it is “important to recognize that...refugees are a distinct group with critical protection needs...It is not a crime to seek asylum”.

Central to any debate concerning refugees is a clear understanding of what it means to be a refugee. In 1967, Canada ratified the 1951 Convention relating to the Status of Refugees to the 1967 protocol. International legal protection revolves around the convention's important, clear and concise criteria for who constitutes a refugee. Unfortunately, it has become obvious while listening to this debate that many on the government side have not read this convention.

Article 1A(2) of the Convention relating to the Status of Refugees defines a refugee as anyone who:

As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

The government continues to ignore logic and evidence. Instead, it proclaims prison to be the cure for any activity it does not support. Does the government seriously think that threatening legitimate refugees with illegal detention will prevent refugees who are fleeing persecution and often death in their countries of origin from escaping to Canada?

Not only does this bill violate international law, it likely violates Canadian law. In the 1985 Supreme Court decision in Singh, the highest Canadian court ruled that the Charter of Rights and Freedoms applies not only to Canadians but to anyone who steps foot in Canada whether or not the person arrives legally. In Bill C-4 are provisions that enable the government to arbitrarily name refugee groups as designated foreign nationals and permit the illegal and unjust detention of said groups for up to 12 months regardless of whether they are legitimate refugees or not.

Section 9 of the Charter of Rights and Freedoms, under the heading of “Legal Rights”, ensures that everyone has the right not to be arbitrarily detained or imprisoned. Section 11, under the same heading, states that any person charged with an offence has a right to be tried within a reasonable time.

We know from the Supreme Court that the Charter of Rights and Freedoms applies to everyone on Canadian soil, whether here legally or not.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, I want to thank my colleague for her very clear and articulate expression of the major concerns with this legislation.

The bill purports to address human trafficking and human smuggling, yet we know that in Canada we already have the highest penalty that our courts could possibly give to those who engage in human trafficking and human smuggling, and that is a life sentence.

The question to my colleague is this: how does she feel this bill would address the legitimate needs of those who are fleeing from very dangerous grounds to seek refuge in a country like Canada?

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Mr. Speaker, clearly Bill C-4 would do nothing to help those who are seeking refuge. That is my concern with the bill.

There are legitimate concerns. People are being persecuted, and they need to look to a country like Canada to deal with their concerns and to be there when they are looking for a place of refuge and safety.

I am concerned that the bill would take that avenue away from them. It would take away the opportunity to find a place of refuge in a country where people understand that they are being persecuted and know only too well how important it is to respond to the needs of people around the world who understand that Canada is a good place to live.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, this very much seems like an issue of ideology and punishment, despite the government's statements that it is interested in targeting the human smugglers who are clearly exploiting very vulnerable people. I would like to hear some comments from my hon. colleague on that.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Mr. Speaker, I think my colleague is absolutely right with respect to this piece of legislation. It is very much in keeping with the ideology that has been put forward by the government on other pieces of legislation.

We are talking about not treating people with respect. We are talking about sending people back to a country where we know they will be persecuted further. We are talking about not reaching out and making sure that we are doing everything we can as a country to help people in these situations, knowing full well that if they are returned to their country, they may even risk death.

My concern here is that we are going down the same path as we are with the crime legislation, through which everyone would be thrown in jail, no matter how small the crime or whether it is a first-time mistake. We would build megaprisons to accommodate Canadians when instead we should be looking at prevention. We should be trying to help Canadians avoid going to prison.

We are going down the same path with Bill C-4. We are not looking out for the best interests of Canadians in the case of the megaprisons and the crime legislation, nor of those who are looking to us to help in terms of their safety and who want to come to Canada.

They are reaching out to us. We should be open and receptive to them instead of looking at them and sending them back and treating them like victims.

This bill would do nothing to help deal with human smuggling and human smugglers. Instead, we would be making victims again of those coming to us looking for refuge.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, before I begin, I would like to congratulate and thank the hon. Liberal member who just spoke about Bill C-4. A large part of what she said is similar to what I wish to say.

To continue along that route, I would like to say that since May 2—the day I was elected to Parliament—and since we started sitting, I have been saddened by the fact that the legislation tabled by those on the other side sometimes contains good things, but more often than not, unfortunately, it simply divides those here. We can all support a bill that protects refugees against human trafficking; we can all work together to ensure that a pedophile never touches another child; we can all agree that someone who has committed a very serious crime should spend a long time in jail and should not easily receive a pardon, and so on.

However, all of these bills before us simply divide us: we are either for or against human trafficking, for or against the government. And we must not try to make any changes. I call this government the “photo-op government”—splashy headlines in the paper, big in-your-face news to show that the government is working for us. But, really, none of this is going to have the desired effect.

We must not forget that a similar bill, Bill C-49, was introduced during the last parliament. And that is one issue I have with us as politicians—it seems that things only get moving once an event is picked up by the media. If it is not in the news, we do not talk about it or deal with it. This bill was drafted following a media event.

I just got out of a meeting that I had to cut short with women who are part of the Sisters In Spirit, which has lost its funding. These are mothers who have lost a child, whose children have disappeared, and we are not taking care of them. They are not asking for the moon. They are asking for peanuts so that they can continue their searches. But unfortunately, that does not make the headlines in the Globe and Mail or the Toronto Star. However, big ships like the MV Ocean Lady and the MV Sun Sea that arrived on the shores of British Columbia in 2009 and 2010 made the news. It was in our face. Everyone said that something had to be done and that a bill needed to be introduced, but they did not take the consequences into consideration, nor did they ensure that the bill would achieve the desired effect.

That is the problem in general with this government. Of course it was shocking to watch the news and see 500 Tamils arriving, as well as the MV Ocean Lady, which had 76 on board. I had a television show and I remember people talking to us about it. It was terrible. Rumours were swirling all around. It is incredible, but I am still responding to people who ask me how it is possible that, in Canada, a refugee makes more money than a retired Canadian. I wonder how they come up with that. Then I realize that people have been misled for years and years. In fact, some people in Canada honestly believe that every refugee arriving here in Canada receives around $1,900 a month. Come on. A person would receive $1,900 just for arriving in Canada as a refugee? We would give refugees that much while our seniors and many other people are having a hard time making ends meet? It almost makes you want to go to another country just to come back as a refugee.

That is not the reality for refugees. Refugees are people who leave their countries because their lives are in danger. These are not people who decide to come to Canada on vacation. They come here for their safety and because we have a reputation—poor us—as a supposedly welcoming, fair and open country that encourages differences and wants people to have more. Canada is a country that ensures that the people who come here are not starving, although I sometimes have doubts about this when I see the number of children living below the poverty line and the number of seniors who are abused or who cannot make ends meet.

As a legislator and with my background as a lawyer, I wonder about the purpose of this bill. The government wants to wipe out human trafficking and we all agree with that. Let them stop claiming otherwise. No one is in favour of human trafficking. I do not think any of my colleagues would support human trafficking. Would anyone in the House support it? If so, I would ask them to please raise their hands. Why? Because we definitely disagree. Do we want someone who is not a real refugee, someone whose life is not in danger, who does not meet the criteria of the existing legislation, to come to Canada to take advantage of our extremely generous system? We do not want that either. I would ask you, Mr. Speaker, to ask those in favour of that to raise their hands. No one wants that.

The government said that it was concerned that many of these people had ties to the Tamil Tigers, a group on the list of terrorist organizations. I said to myself that our friends opposite were introducing their next buzzword: terrorist. This word scares everyone. Anyone who reads the bill will think that the government is protecting their safety, ensuring that people with ties to terrorists do not sneak into our country under the Immigration and Refugee Protection Act.

Why is nothing done when people arrive in great numbers at airports? Is there anything more dramatic than watching refugees arriving by boat on television? But that is not the case for refugees who arrive at an airport chock full of passengers from all over. Someone told me that thousands of refugees arrive at Canadian airports. The number of refugees who arrive by boat is smaller. This bill, once again, attempts to mask the reality and give a false impression. It gives even great powers to the Minister of Immigration under the guise of public safety.

What struck me when they introduced Bill C-4, the former Bill C-49—this is not the first time that our Conservative friends have tried to introduce such a bill—is that it was introduced by the Minister of Public Safety. Why? Because they are trying to send a message that our security is at stake, that terrorists are streaming into Canada. I do not say this flippantly, as though I could not care less about terrorism.That is not at all the case. But let us call a spade a spade, and identify the true terrorists. The trouble is that, in real life, when you cry wolf too often, people stop believing and will not pay attention when there is a real terrorist threat. That worries me. They are trying to portray all refugees as potential terrorists. Unfortunately, that is more or less the general impression.

I hosted a public affairs show on television and radio before I came here. In my practice as a lawyer, I still have frequent contact with the general public, at least in my region, the national capital region. I can say that people were automatically making the equation that a refugee is a terrorist. If someone is hiding, it is because they are running from something. People forget to consider that there is more to it.

The bill may contain some clauses that are worthy of being examined, but, as always, the government is using a sledgehammer to kill a fly. As a lawyer, my primary concern is that this will end up before the courts some day. I had the same concern about Bill C-10. If the government wanted to use its bills to make improvements, protect Canadians better, eliminate human trafficking and ensure that criminals receive punishments that suit their crimes, that would be good. The danger is that with bills like this, it is the opposite, and there will be never-ending cases before the courts. In the end, the answer will be that this violates existing treaties and the charter. The government had better not respond that it intends to abolish the charter one day. I do not think so. I think that Canadians are extremely happy with the charter. If a government adopts unconstitutional legislation, it will be contested.

At some point, the House will end up debating this issue again, since we will be back at square one and the problem of human trafficking will not have been resolved.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, the point I want to make is that Canada has a very proud history of being welcoming and very inclusive, not only to new immigrants, but to those who arrive here as refugees. As Canadians we value that image the world holds of us as being very compassionate and caring.

One key concern I have with this legislation is this sends a message that Canada is prepared not only to break some of its own laws but to break some UN conventions. How does the member think this legislation is going to impact the image Canada has abroad?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, the hon. member has asked an excellent question.

As I was saying, further to the legal analysis of this bill, my biggest concern is that there will be many court challenges related either to the charter or to the UN's Convention Relating to the Status of Refugees. Any challenges related to the UN's Convention Relating to the Status of Refugees, which we have signed, would threaten Canada's image.

Our government speaks on our behalf. The government is not just the Conservatives. The government is all Canadians from coast to coast to coast, not just the small 39% of 61% of the vote in the last election represented by the Conservatives.

It is clear that the image of Canada will suffer.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, it strikes me as ironic that the Conservative government seems to care a lot about finances, but it does not seem to want to talk about the cost of its legislation. It seems to me this legislation, being unconstitutional, would just result in a lot of court challenges and a lot of work at the Supreme Court, and at the end of the day a lot of very smart people working a long time with the end result of no change.

I wonder if the member would care to comment about that.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I love my colleague's lawyers, but they will not love what I am going to say right now. I wish they would not have that much work, but my sneaking suspicion is that because of the government, they will have so much work, especially those constitutionalists and all those specialists on international conventions. Definitely, they cannot just lie there and do absolutely nothing when we see so many inequities that are created through this piece of legislation. I am sad.

When I was a labour lawyer, I often joked with the employers that I represented that, if I did my job well when establishing a collective agreement between the two parties, they would never need me again because the terms would be so clear and precise. I can say that the parties involved in all the collective agreements that I helped to draft rarely needed my help to interpret those agreements later because we found the words to say what the parties wanted to say at the negotiating table. However, when we draft bills such as this one, unfortunately, it leaves a lot of room for interpretation and inequality. We are going to find ourselves before the courts more often than not and it will cost the government a fortune.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, a couple of times today there has been the innuendo that somehow we are cutting back on the number of asylum seekers and refugees that we accept. I want to remind Canadians who are watching that the Balanced Refugee Reform Act that was passed recently adds 20% or 2,500 refugees per year, so we are up to 14,500 refugees per year that we are accepting.

I am wondering if my hon. colleague would correct the record. In terms of Canada's reputation in the world, it is quite strong. We receive many refugees and the Canadian population needs to be reminded of that.